Butts v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 10 June 1889
• Court: Missouri Supreme Court
• Parties: BUTTS v. ST. LOUIS, I. M. & S. RY. CO.

11 S.W. 754

98 Mo. 272

BUTTS v. ST. LOUIS, I. M. & S. RY. CO.

Supreme Court of Missouri.

June 10, 1889.

ACCIDENTS AT RAILROAD CROSSINGS — CONTRIBUTORY NEGLIGENCE.

Plaintiff's intestate, a woman 65 years of age, while passing over a railroad crossing, where there were six or seven tracks, from east to west, was killed by a train detached from the engine, moving towards the north on the second track from the west. As she passed over the third track from the west, her face was turned to the west, and she continued looking in that direction until she stepped on the second track. Her attention was apparently attracted to a moving engine on one of the tracks to the north. It appeared that cars extended on the intermediate tracks up to the crossing, but that, after passing the third track, intestate would have had an unobstructed view from the south, if she had looked around, and could have seen the train in time to avoid injury. The petition alleged that intestate was killed just as she stepped on the second track, and did not charge that the railway employés could have prevented the injury after she appeared on that track. Held, that intestate was guilty of contributory negligence sufficient to bar recovery, though defendant was also negligent in the management of the train. BARCLAY, J., dissenting.

Appeal from circuit court, Jefferson county; JOHN L. THOMAS, Judge.

Action for damages by A. A. Butts against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiff, and defendant appeals.

T. J. Portis and Geo. H. Benton, for appellant. Dinning & Byrns, for respondent.

RAY, C. J.

This is an action to recover $5,000 damages for the death of plaintiff's wife, which was caused by one of defendant's trains, while passing through the town of De Soto, Mo., and at a public crossing over the railroad tracks in said town. Defendant has appealed from the verdict and judgment for said sum in favor of plaintiff. The answer contained (1) a general denial; (2) contributory negligence on part of the deceased; the replication, a general denial to new matter. Defendant offered no evidence in its own behalf, but, at the close of the evidence for plaintiff, asked an instruction in the nature of a demurrer to the evidence, which the court refused, and the exception taken by defendant in this behalf is now urged in this court as error requiring a reversal of the judgment in the cause.

The evidence shows that there were some six or seven different tracks, being the main track on the west, and the several side tracks, comprising the switch-yards, extending from north to south through, or nearly through, the length of said town of De Soto, and that the public crossing in question over said tracks is about or near the middle of said yards, the tracks themselves being generally straight or without curves, except such as are necessary to join and connect the said tracks, and that the tracks have considerable down grade, from south to north, at this point. The train, which was, it seems, an ordinary freight train, was at the time of the injury coming from the south, without the engine attached; the same having been, as the evidence shows, "cut off" or detached several hundred yards perhaps south of the said crossing. After thus cutting the train in two, the employés switched, and ran the engine in on the first track coming from the east, while the train was switched on to the "scale track," or second track from the west, leaving four remaining tracks between the track on which the engine passed and the one on which the train ran. These intermediate tracks were filled or blocked with cars up to the crossing, or nearly so, and these cars on the intermediate tracks, which were both box and flat cars, largely obstructed the view of the approaching trains, from the south at least, so far as parties approaching from the east were concerned. No bell was rung or whistle sounded, the engine having been detached as aforesaid. The evidence further shows that the train in running on the down grade of this track, with its own momentum, (the track being smooth,) made less noise than was ordinarily incident to moving trains of this sort. The petition, we may observe, in this behalf, was not based upon any alleged violation of any city or town ordinance, but alleged and charged defendant with negligence in so detaching the engine from the train, and permitting the latter to be so run, without any means of warning, such as the bell or whistle of the engine would have afforded, and with negligence also in crowding the cars upon the intermediate side or switch tracks, so as to obstruct from the view of the deceased, as she approached from the east, the track on which the train from the south was moving at the time.

As to the conduct of Mrs. Butts at the time of the injury, which is the controlling question in this behalf, the evidence shows, we think, in substance, about this state of facts: She was about 65 years old at the time, as her husband, the plaintiff, states, and was passing over the crossing, going west; that is, she was going over the crossing from the east to the west side of the railroad tracks, while, as we have before seen, the train detached from the engine was moving from the south to the north, on what is designated in the evidence as the "scale track," or the second track from the west. She had on a bonnet, — it seems the...